and Pamela Pulkowski, in her official
capacity as Superintendent of Franklin Regional School District, Defendants

COMPLAINT

The
plaintiffs, Dr. Mark and Maryalice Newborn, who reside at 2371 Adams Court,
Export, PA 15632, hereby make claim for declaratory and injunctive relief
pursuant to the recently enacted Religious Freedom Protection Act (71 P.S. §
2401), the First and Fourteenth Amendments to the United States Constitution,
and 42 U.S.C. § 1983.

1.
Dr. and Mrs. Newborn are the parents of children who are of compulsory school
age pursuant to 24 P.S. § l3-1326.

2.
Dr. and Mrs. Newborn reside in Westmoreland County and in Franklin Regional
School District.

3.
Defendants are Franklin Regional School District, a school district organized
and existing under the Pennsylvania School Code, and Pamela Pulkowski, its
superintendent, who is being sued in her official capacity.

5.
Dr. and Mrs. Newborn have homeschooled their children based on sincerely held
religious beliefs for 11 years.

6.
In a certified letter dated August 1, 2003, (return receipt requested), Dr. and
Mrs. Newborn notified defendants that provisions of the home education statute
imposed substantial burdens on the free exercise of their religion.

8.
The RFPA forbids state and local government agencies from substantially
burdening a person’s free exercise of religion, including a burden which
results from a statute of general applicability, unless the burden is justified
by a compelling interest and is the least restrictive means of furthering the
compelling interest. 71 P.S. § 2404.

9.
In their August 1, 2003 letter, Dr. and Mrs. Newborn provided defendants with a
detailed explanation of their religious faith regarding the education of their
children and how the home education statute imposes substantial burdens on the
free exercise of their religion.

10.
In their August 1, 2003 letter, Dr. and Mrs. Newborn assured defendants that
they would provide their children with a thorough education because they are
accountable to God to do so.

11.
Dr. and Mrs. Newborn’s religious beliefs acknowledge that the civil government
may require them to educate their children, but, according to their religious
belief, the civil government lacks jurisdiction to approve or administratively
supervise the education they provide.

12.
In short, they believe that the religious education that they provide their
children cannot become excessively entangled with a government agency.

13.
It is a specific tenet of Dr. and Mrs. Newborn’s religious faith, rooted in
their understanding of the Bible, that God has given parents jurisdiction and
authority over the education of their children.

14.
It is a specific tenet of Dr. and Mrs. Newborn’s religious faith, rooted in
their understanding of the Bible, that it would be sinful for them to engage in
conduct or expression that would cede their parental jurisdiction and authority
to the civil government.

15.
It is a specific tenet of Dr. and Mrs. Newborn’s religious faith, rooted in
their understanding of the Bible, that parents are charged by God to raise
their children in the nurture and admonition of the Lord, which is the purpose
of all education.

16.
It is a specific tenet of Dr. and Mrs. Newborn’s religious faith, rooted in
their understanding of the Bible, that it would be sinful for them to engage in
conduct and expression that would seek approval from the secular civil
government for the holy and sacred education they are duty-bound by God to
provide their children.

17.
The home education statute requires Dr. and Mrs. Newborn to engage in conduct
and expression that substantially interferes with specific tenets of their
religious faith that God has placed them in authority over their children’s
education.

18.
The specific tenets of Dr. and Mrs. Newborn’s religious faith regarding the
education of their children are religious in nature, as opposed to merely
philosophical or personal.

19.
Dr. and Mrs. Newborn provided defendants with an affidavit signed by Pastor
Peter Hipple, attesting that the plaintiffs’ beliefs regarding the education of
their children are based on the Bible and are religious in nature.

20.
The specific tenets of Dr. and Mrs. Newborn’s religious faith regarding the
education of their children are sincerely held.

21.
Dr. and Mrs. Newborn provided defendants with four letters from friends who
vouched for the sincerity of their religious faith.

22.
The home education statute requires that Dr. and Mrs. Newborn cede jurisdiction
to the school district and become excessively entangled with this government
agency relative to their religious education in that they must file an
affidavit and course objectives with the defendants before the beginning of
each school year.

23.
The home education statute requires that Dr. and Mrs. Newborn cede jurisdiction
to the school district and become excessively entangled with this government
agency relative to their religious education in that they are required to keep
a detailed log of reading materials used and samples of their children’s work
and to submit it all to defendants for a discretionary administrative review.

24.
The home education statute requires that Dr. and Mrs. Newborn cede jurisdiction
to the school district and become excessively entangled with this government
agency relative to their religious education in that the home education statute
gives the superintendent authority, jurisdiction, and subjective discretion to
approve the appropriateness of the religious education Dr. and Mrs. Newborn
provide their children.

25.
In a letter dated November 21, 2003, defendants’ agent informed Dr. and Mrs.
Newborn that defendants did not believe that the home education statute imposed
substantial burdens on the free exercise of their religion.

26.
Unless Dr. and Mrs. Newborn are exempted from the provisions of Act 169 that
compel conduct and expression that violates a specific tenet of their religious
faith, they could be subject to criminal prosecution.

27.
The defendants’ letter of November 21, 2003 suggests that they are considering
truancy prosecution because Dr. and Mrs. Newborn did not provide them with an
affidavit or an outline of education objectives.

28.
Published academic studies have shown that children who are educated at home
score significantly higher on nationally-normed standardized achievement tests
than their peers who are educated in the public schools.

29.
Published academic studies have shown that there is no correlation between the
academic performance of homeschooled students and the degree of regulation
required by the state.

30.
The laws of numerous states are much less restrictive than Act 169 and
homeschooled students in those states perform approximately as well or better
than those in Pennsylvania.

COUNT I

Religious Freedom Protection Act

31.
Dr. and Mrs. Newborn incorporate by reference Paragraphs 1 through 30 as though
they were set forth fully herein.

32.
The RFPA forbids state and local government agencies from substantially
burdening a person’s free exercise of religion, including a burden which
results from a statute of general applicability, unless the burden is justified
by a compelling interest and is the least restrictive means of furthering the
compelling interest. 71 P.S. § 2404.

33.
The General Assembly specifically intended that the protections afforded by the
RFPA extend to state statutes enacted before the enactment of the RFPA. 71 P.S.
§ 2402(2).

34.
The RFPA defines “substantially burden” in part as “[c]ompel[ing] conduct or
expression which violates a specific tenet of a person’s religious faith.” 71
P.S. § 2403(4).

35.
The home education statute compels conduct and expression that violate specific
tenets of Dr. and Mrs. Newborn’s religious faith. Under this statute the
Newborns are subject to truancy prosecution for following the tenets of their
faith and such prosecution has been threatened. Thus, by definition, the
statute imposes a substantial burden on the exercise of the Newborn’s faith.

38.
The RFPA provides that a person whose free exercise of religion has been
substantially burdened or likely will be burdened in violation of section 2404
may assert that violation against an agency as a claim or defense in any
judicial or administrative proceeding, 71 P.S. § 2405(a) and grants this court
jurisdiction, 71 P.S. § 2405(f), to award declaratory and injunctive relief.

(a)
declaring that Act 169’s portfolio requirement is void for vagueness on its
face and as applied to plaintiffs’ religious education program and is therefore
unconstitutional under the Due Process Clause of the Fourteenth Amendment;

(b)
preliminarily and permanently enjoining defendants, their agents and successors
from enforcing Act 169 against plaintiffs and from prosecuting them under the
compulsory attendance laws; and

(c)
awarding counsel fees to plaintiffs pursuant to 42 U.S.C § 1988.

(d)
directing such other and further relief as may be appropriate.

COUNT III

Act 169 Violates the Due Process Clause
of the Fourteenth Amendment by Failing to Provide a Neutral Magistrate

(42 U.S.C. § 1983)

43.
Dr. and Mrs. Newborn incorporate by reference Paragraphs 1 through 30 as though
they were set forth filly herein.

44.
The Due Process Clause of the Fourteenth Amendment forbids fact- finding
procedures that could result in the loss of liberty unless the government
decision-maker is neutral. One requirement of neutrality is that the
decision-maker can have no financial stake in the outcome of the decision.

45.
Act 169 places the district superintendent in charge of deciding whether a home
education program is providing an appropriate education.

46.
If the superintendent determines that appropriate education is not occurring,
the home education must cease.

47.
The amount of state funding a school district receives is determined, in part,
by how many students attend the schools in that district.

48.
Superintendents, therefore, are not neutral because they stand to gain state
funding for their districts by discouraging or disqualifying home education
programs.

(a)
declaring that Act 169’s requirement for a superintendent’s review of the
contemporaneous log and portfolio is unconstitutional on its face and as
applied to plaintiffs’ religious education program under the Due Process Clause
of the Fourteenth Amendment;

(b)
preliminarily and permanently enjoining defendants, their agents and successors
from enforcing Act 169 against plaintiffs and from prosecuting them under the
compulsory attendance laws; and

(c)
awarding counsel fees to plaintiffs pursuant to 42 U.S.C § 1988.

(d)
directing such other and further relief as may be appropriate.

COUNT IV

Act 169 Violates the Due Process Clause
of the

Fourteen Amendment’s Guarantee of Privacy

(42 U.S.C. § 1983)

49.
Dr. and Mrs. Newborn incorporate by reference Paragraphs 1 through 30 as though
they were set forth fully herein.

50.
The liberty clause of the Fourteenth Amendment protects Dr. and Mrs. Newborn’s
right to privacy.

51.
The home education statute requires Dr. and Mrs. Newborn to maintain a detailed
log of the titles of books read by their children and samples of their
children’s work and to submit it all to the superintendent for a subjective,
discretionary review of their religious educational activities.

52.
Requiring the disclosure of the above information violates Dr. and Mrs.
Newborns’ right to privacy.

(a)
declaring that Act 169’s requirement for a superintendent’s review of the
contemporaneous log and portfolio is unconstitutional on its face and as
applied to plaintiffs’ religious education program under the Due Process Clause
of the Fourteenth Amendment;

(b)
preliminarily and permanently enjoining defendants, their agents and successors
from enforcing Act 169 against plaintiffs and from prosecuting them under the
compulsory attendance laws; and

(c)
awarding counsel fees to plaintiffs pursuant to 42 U.S.C § 1988.

(d)
directing such other and further relief as may be appropriate.

COUNT V

Act 169 Violates the Free Speech Clause
of the First Amendment

(42 U.S.C. § 1983)

53.
Dr. and Mrs. Newborn incorporate by reference Paragraphs 1 through 30 as though
they were set forth fully herein.

54.
The Free Speech Clause of the First Amendment to the United States Constitution
forbids state statutes that impose prior restraints or require a governmental
license to engage in speech. Particularly, the government cannot demand the
right to review prior speech as a condition of exercising the right to engage
in future speech.

55.
Teaching children is speech protected by the First Amendment.

56.
For the first year of home education, Act 169 imposes prior restraint by
requiring parents to file a sworn affidavit that includes an outline of course
objectives before they may commence teaching their children.

57.
For the second year and beyond, Act 169 imposes a requirement of obtaining the
discretionary approval of the superintendent of their past teaching, in order
to engage in further, future acts of freedom of speech for the following year.

58.
These requirements violate the parents’ right of freedom of speech protected by
the First and Fourteenth Amendments to the United States Constitution.

(a)
declaring that Act 169’s requirement that parents submit an outline of proposed
course objectives by subject area is unconstitutional on its face and as
applied to plaintiffs’ religious education program under the Free Speech Clause
of the First Amendment;

(b)
preliminarily and permanently enjoining defendants, their agents and successors
from enforcing Act 169 against plaintiffs and from prosecuting them under the
compulsory attendance laws; and

(c)
awarding counsel fees to plaintiffs pursuant to 42 U.S.C § 1988.

(d)
directing such other and further relief as may be appropriate.

COUNT VI

Act 169 Violates the Establishment Clause
of the First Amendment

(42 U.S.C. § 1983)

59.
Dr. and Mrs. Newborn incorporate by reference Paragraphs 1 through 30 as though
they were set forth fully herein.

60.
The Establishment Clause of the First Amendment prohibits excessive government
entanglement with religion.

61.
It is a violation of the Establishment Clause for civil government to conduct
discretionary reviews of the content of the education, to legally authorize, or
to approve religious education.

62.
Act 169’s contemporaneous log and portfolio requirements, as applied to
plaintiffs’ religious home education program, require excessive entanglement
with religion by charging defendants with making a subjective and discretionary
determination whether plaintiffs’ religious education program is “appropriate”
based on a discretionary review of the log and portfolio of work.

(a)
declaring that Act 169’s requirement for a superintendent’s review of the
contemporaneous log and portfolio is unconstitutional under the Establishment
Clause of the First Amendment, as applied to their religious education program;

(b)
preliminarily and permanently enjoining defendants, their agents and successors
from enforcing Act 169 against plaintiffs and for prosecuting them under the
compulsory attendance laws; and

(c)
awarding counsel fees to plaintiffs pursuant to 42 U.S.C § 1988.

(d)
directing such other and further relief as may be appropriate.

COUNT VII

Act 169 Violates the Free Exercise Clause
of the First Amendment

(42 U.S.C. § 1983)

63.
Dr. and Mrs. Newborn incorporate by reference Paragraphs 1 through 30 as though
they were set forth fully herein.

64.
Generally applicable, neutral state statutes that impose burdens on religiously
motivated conduct that is reinforced with the right of parent to direct the
education of their children violate the Free Exercise Clause of the First
Amendment and must be supported by a compelling state interest and employ the
least restrictive means.

65.
Act 169 imposes substantial burdens on these “hybrid” rights by compelling
conduct and expression that violate specific tenets of Dr. and Mrs. Newborn’s
religious faith in a manner which burdens the exercise of their religious faith
without any compelling justification therefore and without following the least
restrictive means of ensuring any governmental interest.

(a)
declaring that Act 169’s contemporaneous log and portfolio requirements are
unconstitutional on their face and as applied to plaintiffs’ religious
education program under the Free Speech Clause of the First Amendment;

(b)
preliminarily and permanently enjoining defendants, their agents and successors
from enforcing Act 169 against them and from prosecuting them under the
compulsory attendance laws; and